Fair Work (State Declarations — employer not to be national system employer) Endorsement 2018 (No.2)

Overview

The Fair Work (State Declarations – employer not to be national system employer) Endorsement 2018 (No. 2) was enacted to address the need for certain employers in specific states to be excluded from the national workplace relations system governed by the Fair Work Act 2009. This endorsement was introduced to allow states to manage the employment relationships of entities integral to their administration, which may be more appropriately regulated at the state level. The endorsement process involves a state making a declaration that a particular employer is not a national system employer, subject to endorsement by the Commonwealth Minister. This mechanism allows specified employers to be governed by state workplace relations arrangements rather than the national system. The endorsement was issued under the authority of the Minister for Small and Family Business and aligns with the policy objective of providing flexibility in workplace relations regulation, ensuring that certain public and local government entities can be managed according to state-specific needs and contexts.

Scope and Application

The Fair Work (State Declarations – employer not to be national system employer) Endorsement 2018 (No. 2) applies to specific employers in New South Wales that have been declared under the Industrial Relations Act 1996 (NSW) not to be national system employers. These declarations pertain to 20 named local councils within New South Wales, which means that these councils and their employees will not be subject to the Fair Work Act. Instead, they will be governed by workplace relations arrangements prescribed by the relevant State, in this case, New South Wales. The Endorsement ensures that these local councils and their employees are excluded from the national workplace relations framework established by the Fair Work Act, except for certain provisions related to unlawful termination of employment, notice of termination, and parental leave, which continue to apply. The Endorsement was endorsed by the Minister for Small and Family Business and commenced on 1 December 2018. It is a legislative instrument under the Legislation Act 2003 but is not subject to the disallowance or sunsetting provisions of that Act.

Key Provisions

The Fair Work (State Declarations – employer not to be national system employer) Endorsement 2018 (No. 2) (the Endorsement) endorses a declaration made under the Industrial Relations Act 1996 (NSW) that certain employers are not national system employers. This endorsement comes into effect on 1 December 2018 and is a legislative instrument under the Legislation Act 2003, although it is not subject to the disallowance or sunsetting provisions of that Act (subsection 14(5) of the Fair Work Act). Under subsection 14(2) of the Fair Work Act, the endorsement applies to employers that are declared by a State or Territory to not be national system employers, provided that a written endorsement by the Minister administering the Fair Work Act is in force in relation to the employer. The endorsement applies to bodies established for public or local government purposes by or under a law of a State or Territory, or entities wholly owned or controlled by such bodies, except for certain types of employers such as those involved in electricity, gas, water supply, rail services, ports, and Australian universities. The obligations and requirements imposed by this endorsement are primarily centred around the exclusion of certain employers from the Fair Work Act's jurisdiction. Employers that are endorsed under this instrument will not generally be subject to the Fair Work Act and will instead be governed by the workplace relations arrangements prescribed by the relevant State or Territory. However, it is important to note that Parts 6-3 and 6-4 of the Fair Work Act, which relate to unlawful termination of employment, notice of termination, and parental leave, will continue to apply to all employers and employees regardless of whether they are subject to the Fair Work Act. This means that while these specific employers may not be subject to the broader provisions of the Fair Work Act, they will still need to comply with these particular provisions. In terms of consequences for breach, the endorsement does not explicitly outline specific offences, penalties, or consequences for non-compliance. However, it is important to consider that any non-compliance with the workplace relations arrangements prescribed by the relevant State or Territory may result in legal action being taken against the employer. Additionally, failure to comply with the specific provisions of Parts 6-3 and 6-4 of the Fair Work Act could result in penalties and consequences under those provisions. The specific penalties for breach of the Fair Work Act would depend on the nature and severity of the breach, and could include fines, legal action, or other civil or criminal consequences as prescribed by the relevant State or Territory.